Michael Leon v. The Boeing Company ( 2017 )


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  •       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    MICHAEL A. LEON,                                       No. 73797-0-I
    Appellant,                        DIVISION ONE
    v.
    THE BOEING COMPANY; MARC                               UNPUBLISHED
    BIRTEL; JOHN DOE 1-50; MARY ROE
    1-50; XYZ CORP 1-50; ABC LLC 1-50;                     FILED: January 17, 2017 Z
    the names of the "John Doe 1-50" "Mary
    Roe 1-50", "XYZ Corp 1-50", and "ABC
    LLC 1-50", defendants being fictitious,
    and unknown to the Plaintiff,
    Respondents.
    Cox, J. - Following a 2013 battery fire on a Boeing 787, Michael Leon, a
    former employee of the battery manufacturer, repeatedly sued Boeing and others
    for alleged false statements they made about Leon and his concerns regarding
    the battery's safety. Leon's lawsuits culminated in a 2014 federal district court
    decision declaring him a vexatious litigant and enjoining him from filing similar
    actions against a list of defendants, including respondents Boeing and Boeing
    spokesperson Marc Birtel. Shortly thereafter, Leon filed this action against
    Boeing and Birtel for defamation and tortious interference with a business
    expectancy. The superior court dismissed the action on summary judgment,
    ruling it was barred by the doctrine of res judicata and, alternatively, the federal
    court's vexatious litigant injunction. Leon fails to demonstrate any error in the
    court's ruling. We affirm.
    No. 73797-0-1/2
    Leon's lawsuits are largely rooted in statements made in 2013 by
    representatives of Boeing and the 787 battery manufacturer, Securaplane. The
    statements, which were published online, challenged Leon's concerns about the
    787 batteries, his version of a factory battery fire, and his veracity. Citing these
    statements, Leon repeatedly sued Boeing, Securaplane, and others utilizing a
    variety of theories, including defamation, libel, slander, and intentional and
    negligent infliction of emotional distress.1
    In September 2014, an Arizona federal district court dismissed one of
    Leon's suits against Boeing, Securaplane and others.2 The court ruled that
    Leon's tort claims were "duplicative" of claims dismissed as meritless in prior
    actions and dismissed them. The court denied Leon's request to add Boeing
    spokesperson Marc Birtel to the suit, ruling that the claims against Birtel were
    equally meritless and the amendment would be futile. The court also dismissed
    Leon's employment discrimination claim for "post-employment retaliation related
    to whistle-blowing allegations" he made regarding the 787 battery's safety.
    1 See Leon v. Pacific Scientific Energetic Materials Co., Case No. 2:13-CV-
    00838-MCE-KJN (E.D. Cal. Dismissed July 25, 2013, Dkt. # 5, 8); Leon v. The Boeing
    Co., Case No. 1:13-CV-02860 (N.D. III. Transferred to D. Ariz. July 12, 2013, Dkt. # 23,
    appeal dismissed, Dkt. # 33); Leon v. Meggitt PLC, Case No. 1:13-CV-00964-UNA
    (D.D.C. Transferred to D. Ariz. June 26, 2013, Dkt. # 4); Leon v. Exponent, Inc., Case
    No. 5:13-CV-05481-HRL (N.D. Cal. Dismissed February 10, 2014, Dkt. # 18); Leon v.
    Exponent, Inc., Case No. 2:14-CV-00095 (W.D. Wash Dismissed February 21, 2014,
    Dkt. #11), and Leon v. Meggitt PLC, Case No. 1:13-CV-1679 (E.D. III. Transferred
    January 2, 2014, Dkt. # 40). (Motion for Decl. of Vexatious Litigant (Doc. 63) at 8).
    2 Leon v. Meggitt PLC. No. CV 14-226 TUC DCB, 
    2014 WL 4681559
    , at *1-13 (D.
    Ariz. Sept. 19, 2014). affd sub nom. Leon v. Boeing Co., No. 14-17009, 
    2016 WL 5800479
    (9th Cir. Oct. 5, 2016).
    -2-
    No. 73797-0-1/3
    The court enjoined Leon "from filing any further actions arising directly or
    indirectlyhorn measures taken by the Plaintiff in respect to the lithium ion battery
    within the context of his employment relationship with Securaplane,. . . , the
    Boeing Company, . . . and past or future employees . .. who Plaintiff alleges to
    be 'representing' these entities."3 The court stated that "the factual allegations
    reached by this injunction include, but are not limited to ... statements made
    about Plaintiff and published on the internet in Januaryand February 2013."A
    The court also stated that the entities and individuals protected by the injunction
    included the Boeing Corporation and Marc Birtel.
    Despite the injunction, Leon subsequently filed the present action against
    The Boeing Company and Birtel for defamation and tortious interference with a
    business expectancy. The defamation claim cited the 2013 statements on the
    internet and alleged that Birtel and the Boeing Company "acted with negligence
    or malice when making the false and defamatory statements." The tortious
    interference claim alleged the defendants intentionally interfered with Leon's
    ability to obtain employment through "false and defamatory communications" and
    "with improper motive—greed, retaliation, ill will and deviation from commercial
    norms."
    Respondents moved for summary judgment, arguing that the suit was
    barred by the doctrine of res judicata and the federal district court's injunction. In
    3ld
    4 
    id. at 12
    (some emphasis in original).
    No. 73797-0-1/4
    response, Leon argued that res judicata did not apply because his tortious
    interference claim had not been previously litigated and was based in part on
    recently discovered facts concerning his inability to obtain employment. He also
    claimed Birtel and The Boeing Company were not defendants in his prior suits,
    but conceded the Boeing Corporation was a defendant in those suits. With
    respect to the injunction, Leon argued it was overly broad and did not apply in a
    state court action. Respondents replied that both Birtel and Boeing were parties
    to several of the prior suits, and that the tortious interference claim, though not
    previously raised, was barred due to its reliance on the same acts of alleged
    defamation.
    Leon then moved for a continuance to conduct discovery. He did not,
    however, describe what facts he expected to discover and how they would relate
    to the issue of res judicata. The court ruled that given "the nature of Defendant's
    summary judgment motion, no substantive discovery is required to craft a
    response."
    The court subsequently granted summary judgment, ruling that the action
    was barred both by res judicata and the federal district court's injunction:
    I find that here the elements of res judicata have been met.
    There is an identity of parties between this case that names
    the Boeing Company and Mr. Birtel, who I might add is a
    spokesperson as I understand it, for the Boeing Company. And the
    Defendants do cite to several cases ... the Arizona courts ... in
    the 226 case, the judge had previously made it explicit that his
    dismissal would apply to Mr. Birtel who Mr. Leon was attempting to
    explicitly add as a named defendant at the time of the dismissal.
    There are other cases - the Western District of Washington
    case that was dismissed by Judge Jones, also named Mr. Birtel.
    And there is ... a similarity of identity between the defendants in
    -4-
    No. 73797-0-1/5
    this case and the other cases .. . that Mr. Leon has brought. All of
    them arise from the same subject matter... - the use of the
    battery and the subsequent article that appeared on nextgov.com.
    And I understand, Mr. Leon, that you take great dispute and
    umbrage at some of the statements that were made, that these
    articles continue to be out there, that you have suffered
    consequences as a result of these publications, but I can't decide
    any of those underlying issues. The only ability I have to make a
    decision at this point is whether the - this lawsuit arises from that
    same set of facts as does the earlier lawsuits that have been
    addressed, and I find that they do.
    Those earlier lawsuits were litigated to judgment even
    though the judgment was not based on a resolution of the disputed
    issues but. . . on legal grounds, they were fully and finally resolved
    by judgment. And the fact that an interference with business
    expectancy was not a claim that was explicitly raised before doesn't
    preclude that finding.
    There is a close relationship and a logical connection
    between that particular cause of action and other claims for
    defamation that have previously been brought. And as [counsel]
    noted, under Washington law it is not required that there be a
    precise identity between the claims if in fact they are arising from
    the same circumstances and nucleus [of facts].
    And as I noted,... if it wasn't explicit in my earlier
    discussion, the prior cases were litigated to judgment. And so
    under those findings, the doctrine of claim preclusion, or res
    judicata, does apply here to preclude Mr. Leon's claims brought in
    this King County action.
    I'll also mention that, you know, I've read a couple of times
    now the Arizona District Court Order in the 226 case, Leon vs.
    Meggitt, and it does create an explicit injunction against further
    litigation arising out of these facts, which would cover this case in
    King County. Now, I realize that is on appeal to the Ninth Circuit,
    but there has been no decision yet in that appeal, and so for my
    purposes, the injunction is still operative, and so that would be a
    second basis on which to grant the Defendant's motion, although I
    am also finding that res judicata applies here.
    Accordingly, the Defendants' Motion for Summary Judgment
    is granted and the Plaintiff's claims are dismissed.[5]
    Leon appeals.
    5 Report of Proceedings (June 26, 2015) at 24-26.
    -5-
    No. 73797-0-1/6
    CONTINUANCE
    Leon first challenges the court's denial of his motion for a continuance to
    conduct discovery. Under CR 56(f), a court may order a continuance to allow a
    party opposing summary judgment to conduct discovery. We review for abuse of
    discretion a trial court's denial of a CR 56(f) motion for a continuance.6
    Whether res judicata bars an action is a question of law, not fact.7
    Likewise, whether the injunction bars Leon's claims is also a question of law.8
    Given the legal questions presented, the court did not abuse its discretion in
    concluding that discovery was unnecessary for Leon to submit his response to
    the motion to dismiss. In addition, Leon failed to demonstrate below how
    discovery would assist him in responding to the res judicata claim. A motion for a
    continuance is properly denied if the moving party does not outline the evidence
    that is sought and demonstrate how the new evidence would support the party's
    position.9 The superior court did not abuse its discretion in denying a
    continuance.10
    6 Bavand v. OneWest Bank, No. 74347-3, slip op. at 4 (Wash. Ct. App. Nov. 28,
    2016).
    7 Enslev v. Pitcher. 
    152 Wash. App. 891
    , 899, 
    222 P.3d 99
    (2009).
    8 See U.S. v. State of Washington. 
    761 F.2d 1419
    , 1421 (9th Cir. 1985)
    (interpretation of injunction and its application to undisputed facts is a question of law).
    9CR 56(f); Briogs v. Nova Servs., 
    135 Wash. App. 955
    , 961-62, 
    147 P.3d 616
    (2006).
    10 See Van Pinter v. Citv of Kennewick, 
    64 Wash. App. 930
    , 937, 
    827 P.2d 329
    (1992), affd, 
    121 Wash. 2d 38
    , 
    846 P.2d 522
    (1993) ("[W]here the discovery sought would
    not meet the issue that the moving party contends contains no genuine issue of fact, it is
    -6-
    No. 73797-0-1/7
    SUMMARY JUDGMENT / RES JUDICATA
    Summary judgment is proper "only when there is no genuine issue as to
    any material fact and the moving party is entitled to judgment as a matter of
    law."11 Leon contends the court erred in granting summary judgment because it
    misapplied the doctrine of res judicata. We review a dismissal based on res
    judicata de novo.12
    A claim is barred by the doctrine of res judicata if the claim was or could
    have been raised in earlier litigation in which there was identity of (a) subject
    matter, (b) cause of action, (c) persons and parties, and (d) quality of persons.13
    The doctrine prevents piecemeal litigation, ensures the finality of judgments, and
    promotes judicial efficiency and fairness to litigants.14 The prior action must have
    been litigated to a valid and final judgment on the merits.15 A grant of summary
    judgment or a dismissal under CR 12(b)(6) is a final judgment on the merits.16
    not an abuse of discretion to decide the motion for summary judgment without granting
    discovery.").
    11 Scrivener v. Clark Coll.. 
    181 Wash. 2d 439
    , 444, 
    334 P.3d 541
    (2014); see also
    CR 56(c).
    12 Emesonv. Dep't of Corr.. 
    194 Wash. App. 617
    , 626, 
    376 P.3d 430
    (2016).
    13 Loveridge v. Fred Mever. Inc.. 
    125 Wash. 2d 759
    , 763, 
    887 P.2d 898
    (1995);
    Williams v. Leone & Keeble. Inc.. 
    171 Wash. 2d 726
    , 730, 
    254 P.3d 818
    (2011).
    14 Spokane Research & Defense Fund v. Citv of Spokane, 
    155 Wash. 2d 89
    , 99,
    
    117 P.3d 1117
    (2005); Storti v. Univ. of Wash., 
    181 Wash. 2d 28
    , 40, 
    330 P.3d 159
    (2014).
    15 Hisle v. Todd Pac. Shipyards Corp., 
    151 Wash. 2d 853
    , 865, 
    93 P.3d 108
    (2004).
    16 DeYoung v. Cenex Ltd.. 
    100 Wash. App. 885
    , 892, 
    1 P.3d 587
    (2000); see inre
    Personal Restraint of Metcalf, 
    92 Wash. App. 165
    , 175 n.6, 
    963 P.2d 911
    (1998).
    No. 73797-0-1/8
    Applying these principles here, we conclude the superior court properly
    dismissed Leon's complaint on the basis of res judicata.
    Identity of Subject Matter
    Leon's current and prior actions involve the same subject matter. In Leon
    v. Meggitt, (CV 13-287 TUC JGZ) (filed April 25, 2013), Leon's complaint focused
    on the alleged defamatory statements in the 2013 on-line article, statements
    about the battery fire made by Boeing spokesperson Marc Birtel, and statements
    made by Leon's former employer, Securaplane. Two other federal suits filed by
    Leon in 2013 were "dismissed as duplicative" of Leon v. Meggitt, (CV 13-287
    TUC JGZ) (filed April 25, 2013).17
    In the subsequent suit resulting in the vexatious litigant injunction, the
    federal district court dismissed Leon's tort and defamation claims against a
    number of defendants, including Boeing, because they were "identical to the
    claims adjudicated [in Leon v. Meggitt, (CV 13-287 TUC JGZ) (filed April 25,
    2013)]."18 The court also ruled that its grounds for dismissal applied equally to a
    group of defendants Leon unsuccessfully attempted to add to the suit, including
    respondent Marc Birtel.19 The court noted that Leon's prior suits "all in one way
    or another assert that defendants committed defamation, libel, slander, via the
    internet in 2013."20 In addition, the court dismissed Leon's Title VII claim based
    17 Leon v. Meggitt PLC, 
    2014 WL 4681559
    , No. CV 14-226 TUC DCB, at 3.
    18 ]d at 4.
    19 Id
    20 Jd
    -8-
    No. 73797-0-1/9
    on defamatory statements allegedly made in retaliation for Leon's expressed
    concerns about the battery's safety.
    Similarly, Leon's suit in the federal district court for the Western District of
    Washington21 alleged "adverse consequences in connection with an investigation
    into problems with a battery aboard a new model Boeing airplane" and asserted
    a cause of action for "Defamation Invasion of Privacy False Light Emotional
    Distress."
    Leon's complaint in the present case once again relies on the 2013
    internet statements and alleges that Birtel and the Boeing Company "acted with
    negligence or malice when making the false and defamatory statements." Leon's
    tortious interference claim rests on allegations that the defendants wrongfully
    interfered with Leon's ability to obtain employment by using "improper means" -
    i.e., "false and defamatory communications." It also rests on a claimed improper
    motive - Le., a retaliatory vendetta manifested in "a campaign to defame Plaintiff'
    and "discredit [his] safety concerns."
    In sum, the instant litigation and Leon's prior actions share the same
    subject matter.
    Identity of Causes of Action
    The second requirement—whether the cases share an identity of causes
    of action -- is also satisfied. Courts consider four factors in assessing this
    requirement: "(1) whether rights or interests established in the prior judgment
    21 Leon v. Exponent, et al.. Case 2:14-CV-00095-RAJ (W.D. Wash, February 21,
    2014).
    -9-
    No. 73797-0-1/10
    would be destroyed or impaired by prosecution of the second action; (2) whether
    substantially the same evidence is presented in the two actions; (3) whether the
    two suits involve infringement of the same right; and (4) whether the two suits
    arise out of the same transactional nucleus of facts."22 We address each factor
    in turn.
    First, the rights and interests established in Leon's prior actions would
    plainly be impaired ifthe present action were allowed to proceed. Some of the
    prior decisions dismissed Leon's defamation claims with prejudice and enjoined
    him from filing any more suits based on the alleged defamatory statements in
    2013.23 If allowed to proceed, the present action for defamation and tortious
    interference with a business expectancy would impair those established rights.
    Second, as noted above, Leon relies on essentially the same evidence -
    i.e., the alleged defamatory statements in 2013 - for all of his causes of action,
    including his current tortious interference claim. Leon's complaint alleged
    tortious interference due to respondents using improper means such as false and
    defamatory statements. This is the same evidence underlying the prior actions.
    Although the complaint also alleged tortious interference based on an "improper
    motive," Leon did not argue at summary judgment, and does not argue on
    appeal, that these allegations constitute alternative bases for his tortious
    22 
    DeYoung. 100 Wash. App. at 892
    (quoting Kuhlman v. Thomas, 
    78 Wash. App. 115
    , 122, 
    897 P.2d 365
    (1995)).
    23 Leon v. Meggitt PLC. CV 14-226 TUC DCB, at 12 (D. Arizona, Sept. 19, 2014)
    (dismissing causes of action with prejudice, enjoining further actions, and noting that
    some prior dismissals were "without leave to amend because the claims were
    frivolous.").
    -10-
    No. 73797-0-1/11
    interference claim. In any event, a separate tortious interference claim based on
    improper motive would also be barred because, as pleaded by Leon, it rests on
    the same previously litigated acts of defamation. Leon's complaint describes the
    respondents' motive as a retaliatory vendetta manifested in "a campaign to
    defame Plaintiff' and "discredit [his] safety concerns." These allegations are
    based on the same evidence of defamation and retaliation at issue in the prior
    suits.
    Third, all of Leon's lawsuits involve infringement of the same right - j^e.,
    the right to not be defamed.
    And fourth, the suits arise from the same transactional nucleus of facts.24
    Identity of Persons and Parties and Quality of Persons
    Res judicata requires "that the first and second proceedings involve an
    identity as to persons and parties, and an identity as to the 'quality of the persons
    for or against whom the claim is made.'"25 These requirements boil down to a
    24 Cf Krepps v. Reiner, 
    588 F. Supp. 2d 471
    , 485 (S.D.N.Y. 2008), affd, 377 F.
    App'x 65 (2d Cir. 2010) (dismissing intentional interference with contract claim because
    "Plaintiff is not permitted to dress up a defamation claim as a claim for intentional
    interference with a prospective economic advantage. . . . The Court has already held
    that Krepps' allegations with regard to the [alleged defamatory] letter are insufficient to
    state a cause of action for defamation."); Pasgualini v. MortgagelT, Inc., 
    498 F. Supp. 2d 659
    , 669-70 (S.D.N.Y. 2007) (holding that claim for intentional interference with a
    business expectancy based solely on negative statements allegedly harming her
    business reputation was in essence a defamation claim, and therefore subject to statute
    of limitations applicable to such claims).
    2514A Karl B. Tegland, Washington Practice: Civil Procedure § 35:27, at 534 (2d
    ed. 2009).
    -11 -
    No. 73797-0-1/12
    rule "that a judgment is res judicata, and therefore binding, on all parties to the
    original litigation, plus all persons in privity with such parties."26
    Here, the parties dispute whether respondents Boeing and Birtel were
    defendants in any of Leon's prior suits. Respondents contend Boeing and Birtel
    were both defendants in Leon v. Exponent, etal., 14-CV-0095 (W.D. Wash. Jan.
    27, 2014). They did not, however, provide the superior court or this court with a
    copy of the complaint in that action. Nothing in the record resolves the parties'
    dispute on this point. Although Boeing was a named defendant in Leon v.
    Boeing, etal., (CV 13-286 TUC JGZ) and Leon v. Meggitt PLC, CV 14-226 TUC
    DCB (D. Arizona, Sept. 19, 2014), Birtel was not a named defendant in either
    case.
    Respondents correctly point out, however, that the court in the latter case
    held that the Leon's claims would be equally meritless, and thus futile, if brought
    against Birtel and others Leon proposed to add to his complaint. "A court's
    determination that a proposed amendment to a complaint would be futile
    operates as a judgment on the merits ofthe proposed claim."27 And the court
    expressly stated that its injunction against further actions based on the alleged
    defamatory statements applied both to any such actions against Birtel, "the
    Boeing Company" and "Boeing Corporation."28 Courts "may bind nonparties to
    26 id
    27 SFM Holdings. Ltd. v. Banc of Am. Sec, LLC, 
    764 F.3d 1327
    , 1344 (11th Cir.
    2014).
    28 Leon v. Meggitt PLC. 
    2014 WL 4681559
    , No. CV 14-226 TUC DCB, at 12.
    -12-
    No. 73797-0-1/13
    the terms of an injunction or restraining order to preserve [their] ability to render a
    judgment in a case over which [they have] jurisdiction."29
    In addition, we have held that persons in privity with defendants in prior
    suits are viewed as the same party for purposes of res judicata.30 When, as
    here, a prior suit against an employer is based on the actions of its employees,
    the employer/employee relationship is sufficient to establish privity and bar a
    subsequent action against the employee based on res judicata.31 This holding
    applies equally here. Leon's prior suits against Boeing for the actions of its
    employees establishes privity with its employees and bars his suit against Boeing
    employee Marc Birtel. Accordingly, we conclude the lawsuits share an identity of
    persons and parties or parties in privity.
    Leon's claim that his prior suits were against the Boeing Corporation, not
    The Boeing Company, is unpersuasive. Leon contends "[t]here is no entity
    named Boeing Corporation. There is only The Boeing Company." But as
    respondent Boeing Company correctly points out, it appeared in and defended
    against Leon's prior complaints and "Leon cannot capitalize on his own pleading
    errors, when beyond question he intended to sue, and did sue, Boeing in those
    prior cases." We agree.
    29 United States v. Paccione. 
    964 F.2d 1269
    , 1274-75 (2nd Cir. 1992).
    30 
    Kuhlman. 78 Wash. App. at 121-22
    .
    31 id
    -13-
    No. 73797-0-1/14
    Final Judgment
    The prior actions on which our res judicata analysis rests were final
    judgments. The court in Leon v. Meggitt, (CV 13-287 TUC JGZ) (filed April 25,
    2013) "addressed the merits" of Leon's claims and dismissed them with
    prejudice. The court in Leon v. Meggitt PLC, CV 14-226 TUC DCB (D. Arizona,
    Sept. 19, 2014) found Leon's claims "patently without merit" and dismissed them
    with prejudice. And the federal district court in Leon v. Exponent ruled the
    complaint was frivolous and failed to state a claim on which relief could be
    granted. These are final judgments for purposes of res judicata.
    INJUNCTION
    The superior court also dismissed this case on the alternative ground that
    it was barred by the injunction issued in Leon v. Meggitt PLC, No. CV 14-226
    TUC DCB, 
    2014 WL 4681559
    , at 12 (D. Ariz. Sept. 19, 2014).32 Leon challenges
    the injunction on various grounds but cites no authority allowing him to
    collaterally attack a federal court injunction in state court. Furthermore, he
    appealed the injunction to the Ninth Circuit, which recently upheld it against
    Leon's argument, advanced here, that it was not narrowly tailored.33 And he
    32 The court broadly enjoined "actions arising directly or indirectly from measures
    taken by [Leon] in respect to the lithium ion battery within the context of his employment
    relationship with Securaplane, its parent corporate entities or subsidiaries, the Boeing
    Company, its clients or entities providing services to Boeing, and past or future
    employees or non-employee individuals, who [Leon] alleges to be "representing" these
    entities." (Emphasis added.)
    33 Leon v. Boeing Company. _ Fed. App'x _, 
    2016 WL 5800479
    (Oct. 5, 2016).
    -14-
    No. 73797-0-1/15
    cites no authority that bars the state court from observing, as a matter of comity,
    the restrictions of a federal injunction. For all these reasons, Leon fails to
    demonstrate any error in the superior court's conclusion that the injunction bars
    this action.
    We affirm the order of summary judgment.
    ^tTTC, J7
    WE CONCUR:
    15